Plaintiff's Responses, Objections and Modifications to Reports Submitted

    UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

. ' ■ ~ ‘ )
RONALD BRADLEY, et al., )

)Plaintiffs )
)

v. )
)WILLIAM G. MILLIKEN, et al., )
)Defendants )
)and )
)DETROIT FEDERATION OF TEACHERS )

LOCAL 231, AMERICAN FEDERATION )
OF TEACHERS, AFL-CIO, )

)Defendant-Intervenor )
)

and )
)DENISE MAGDOWSKI, et al., )

Defendants- )
Intervenor )

)
et al. )

~ ~  ________________  )

CIVIL ACTION NO 
35257

PLAINTIFFS’ SUPPLEMENTAL RESPONSES,
OBJECTIONS AND PROPOSED MODIFICATIONS TO REPORTS SUBMITTED

Introduction

In this response, plaintiffs will spell out specific
objections with suggested alternative approaches, first to the
Panel’s Report and then to State Superintendent's Reports; we
will conclude with a proposal as to how planning may proceed.1
1 As we read the objections of the intervening school districts, 
they are now willing, pursuant to the express orders of the Court on June 14, 1972, to reserve litigation of the primary 
legal issues for appeal while assisting the District Court on 
necessary planning "to the end that there will be no unnecessary 
delay in the implementation of the ultimate steps contemplated 
in the orders of the District Court in event the decision of the 
District Court is affirmed on appeal." Bradley v. Milliken,
No. 72-3002 (6th Cir. July 20, 1972) (order staying all proceedings 
in this Court concerning Metropolitan relief, "other than 
planning proceedings"). Although the objections filed by the 
State Defendants in the main merely continue in this Court their 
argument of impotence, the reports of the State Superintendent 
give realistic promise for assistance of the State Superintendent 
and the State Department of Education in further planning. In 
the proposals which follow, plaintiffs assume that all school 
authorities— including State defendants— can now work toward 
modifying the plans submitted, in accord with the previous 
rulings and orders of this Court, while reserving their arguments 
on the ultimate and dispositive legal issues , which have previously 
been passed upon by the District Court, for resolution in the 
appellate process.



• •
In brief summary, five central propositions are spelled out
hereafter. First, the Panel's Report offers a sound foundation 
for proceeding; but, in light of the time now available and 
objections made, it can be modified so that a more complete, 
accurate, and practicable plan of pupil assignment and trans­
portation will be developed over the next months. Second, 
reporting on, and planning to cure, continuing and expanding 
violations within the Detroit School District must proceed, 
looking toward second semester relief, insofar as compatible with 
eventual implementation of a metropolitan plan. Third, the 
State Superintendent's Report on interim arrangements provides, 
with modifications, a feasible method of implementing the 
complete plan of desegregation, at least initially. Utilizing 
such interim arrangements will permit implementation of the 
complete plan of desegregation with the least possible intervention 
into existing arrangements until such time as the Legislature 
of the State of Michigan, or other state agency, responds with a 
reorganization of financial, governance, and administrative 
arrangements or, upon failure of the State to so respond or 
upon showing of good cause, the Court insofar as necessary uo 
insure the continuing workability of the plan of desegregation.^ 
Fourth, planning by designated panel members should proceed 
immediately in a structured framework with the assistance of 
local school authorities, and the State Superintendent to 
modify the plans submitted. Finally, the State Superintendent 
and local school authorities should work to develop final 
memoranda of agreement, which can serve as a contractual basis 
for the initial operation of the metropolitan plan by existing 
state, intermediate, and local school authorities, in accord 
with the orders of the Court. To secure these ends, plaintiffs 
respectfully request that the Court convene, in chambers, a 
conference of all counsel, the State Superintendent and the last 
permanent Chairman of the panel, to determine the appropriate 
arrangements for proceeding, on or before -September 29, 1972.

2 Such an approach obviates the need for this Court now 
consider in depth the State Superintendent's Report on 
Arrangements.

to
final

2



I. THE PANEL'S REPORT
A. Pupil Assignment

1. No party has objected to the 16 cluster modification 
proposed by the panel in its submission of July 24, 1972; and 
plaintiffs specifically affirm such modification as an appropriate 
basis for all further planning and eventual implementation.3

2. No party has objected to the criteria for pupil 
assignment set forth at p. 1 and the first paragraph of p. 2 
submitted by the panel on July 29, 1972^ [hereafter Panel Report]; 
and plaintiffs affirm such criteria with the caveat that, 
wherever necessary to minimize transportation and/or accomplish 
actual desegregation more conveniently and soundly, (1) the 
contemplated K-3, 4-6, 7-9, 10-12 grade structure and (2) the 
movement of students through school together in "articulated" 
feeder pattern groupings be subject to alteration as the circum­
stances of particular pairings require. In short, the goal is 
maximum flexibility consistent with desegregation.

3. Several objections have been raised by the other 
parties to the assignments contained in Appendix A as an actual 
plan of desegregation; however, as the Panel Report noted,
"Such tables are illustrative only...The secondary school 
population figures are projections of student movement from 
elementary to secondary schools... Building assignments were 
marde without full knowledge as to the suitability of each 
building for that assignment... particular building assign­
ments should be reviewed by the local districts to assure
the optimum utilization of buildings." Now, given the time 
by the stay on implementation, it is precisely such planning 3 4

3 The clusters also permit continued use of the intermediate 
school districts, merely by attaching Detroit (and Hamtramck,
-Highland Park, Harper Woods, and Grosse Pointe) schools to 
the intermediate district supervising the other schools in 
any cluster. Also, the pairing and feeding of schools^ 
within clusters permits planning, where deemed appropriate, 
on an even smaller, yet racially unified basis, than the clusters.

4 These criteria make clear that the panel's report does not 
purport to be a "racial balance" or "SES" plan; moreover, where 
schools are not now racially identifiable, every attempt is made 
to include them "as is" in the plan. An examination of the

. actual pupil assignment plan and maps supplementing the ^
report show that the purport of the report has been carried out 
in fact. For example, although the pupil assignment figures^ __ 
admittedly represent but rough approximations, individual scnooi



• •
and consultation with local districts, and use of actual figures 
for secondary pupils, which should proceed forthwith to modify 
and rework the panel's plan to provide for the most practicable 
and effective plan of pupil assignment.5

H. In particular, plaintiffs respectfully suggest that 
the following practicalities, insofar as possible, should now 
be attended to in order that the plan of pupil assignment within 
the sixteen clusters may be modified and reworked (subject to
the previously noted caveats.)

a. The actual figures for secondary school pupils
should be used.

b. The actual suitability and capacity of each
building should be known and utilized.

c. The actual capacities should be known and used 
on a uniform basis within clusters to the end that schools will 
be substantially alike (i.e., schools will not be unnecessarily 
overcrowded, double shifts can be avoided, utilization may be 
substantially equalized at the present desegregation or cluster 
area mean) and continuing evaluation of actual future construction 
needs can be made.

d. The actual location'of elementary and secondary
schools, as well as existing attendance boundaries, should be
known and utilized so that the choice of elementary
schools feeding into secondary schools will not lead to either
populations vary from under 20$ to over *10/5 black. (We do note, 
however, that in some instances apportioning students among 
schools appears unduly mechanistic. By utilizing actual enrollments 
a more practicable method can be used consistent with constitutional 
requirements.) 5

5 Thus, much of the accusatory rhetoric of several of the objections 
filed by suburban districts is unwarranted. For example, but 
for the stay by the Sixth Circuit, and continuing occupation 
of the parties with proceedings there, surely such local consul­
tation and reworking could have proceeded to completion of a 
workable plan for three clusters, K-6 for implementation this fall. 
Indeed, it is precisely such working details which have often been 
ironed out by school authorities elsewhere in the first weeks 
of initial operation under plans of desegregation. Because of 
the stay on implementation, a different alternative has been 
here made available to the Court and the parties: refinement
of the plan prior to implementation. In any event, if upon implem­
entation, previously unforseen problems arise or solutions prove 
ineffective or unduly burdensome, the District Court retains 
jurisdiction of the case and is open to reports, suggestions, and 
hearings to modify the plan, even while appeals are pending. See
e.g. Kelley v. Metropolitan Bd. of Ed. of Nashville and Davidson
County— F.2d— TTSth Cir~ May 30, 1972) (Slip op. FN 3 P .~2~3.and
p. 25) . Given the present stay, however, plaintiffs hope that 
the time available will be used to forsee and effectively solve 
as many of the problems before implementation as possible.

-  4 -



untoward anomalies or an increase in transportation.
e. Within clusters, realistic transportation 

runs should be made for many pairings to minimize overall 
transportation times consistent with Court's previous rulings 
and to assist in the development of the transportation plan.

f. All schools and pupils in the desegregation 
area should be accounted for and assigned upon modifying 
and reworking the plan.

g. In light of these suggestions, further planning 
for pupil assignment and development of a transportation plan, 
therefore, must include, as contemplated in the Panel’s Report, 
the full utilization of the data, resources, and experience 
from local districts.^

5. Insofar as all these matters are concerned, we believe 
that the Court's previous orders make it clear that no particular 
racial ratio is required to be achieved?Iany school, but rather that 
"within the limitations of reasonable travel time and distance 
factors, pupil reassignments shall be effected within...clusters... 
so as to achieve the greatest degree of actual desegregation to 
the end that upon implementation, no school, grade or classroom 
be substantially disproportionate to the overall pupil racial 
composition." Order of June 1^, 1972, §11 B.

B. Pupil Transportation .
6. It is appropriate to plan pupil transportation, as 

with almost every other aspect, at least initially on a cluster 
by cluster basis; however, now that there is time, a complete 6

6 Several of the other objections raised by suburban school districts 
may have more rhetoric than merit. The court has ruled that 
the transportation "burden" of desegregation should be as 
fairly borne by each race as practical. Thus, it should be 
recognized by the Grosse Pointe Schools that accomodation of 
their desire to make the "burden" on Grosse Pointe pupils uniform 
must give way to the constitutional command that the "burden^ 
of reassignment be borne as fairly as possible by white children as 
a class compared with black children as a' class. (Compare 
Grosse Pointe "Additional Objections":at 4.) And this is a 
matter of constitutional equity not unproven, and baseless,
"common sense educational" assertions, Kelley v. iletropolitan 
Bd. of Ed. of Nashville Davidson County— F♦ 2d~~(bt'n Gir. May 30, 
1972) (McCree concurring)

-  5 “



plan of transportation should be developed in conjunction with 
pupil assignments. Such transportation plan should operate 
efficiently, maximize utilization of existing transportation 
capacity, and operate in a coordinated fashion for the entire 
desegregation area.

7. In particular, we join with intervening school 
districts in objecting to any general piggy-backing system 
which requires children to be bused to one pick-up point, trans­
ferred to another bus, and then transported to school, (cf. Panel 
Report at 22, point f at the bottom of the page)! Although we 
understand that such piggy-backing system was initially proposed 
and supported by representatives of the suburbs, we understand 
that the panel ultimately rejected the approach as a general 
rule. At least during the initial period of implementation,
the State Superintendent should oversee the operation of all 
aspects of the pupil transportation system, including particularly

Othe purchase or lease of new transportation.
8. Plaintiffs concur in the recommendations of the

panel beginning with paragraph four at 23 through the final paragraph 
at 25. * *

! We cannot, however, join the Intervening Defendant, Detroit 
Federation of Teachers, objection and the Minority Report 
of the Panel, in their opposition to point b at the bottom of 
page 22 af the Panel Report. The hours at which classes are 
to begin or end should be set, at least initially, to minimize 
transportation costs within reasonable hours for school 
staggering in further planning. Insofar as present union 
contracts can be accomodated in this respect, all the better; 
but where there is a conflict, at least for the initial 
period of implementation, teacher bargaining rights, like 
local school district policy, must give way.

8 During the initial period of implementation, title to all 
transportation equipment need not be changed or vest in other 
than local districts, including the Detroit school district.

6 -



C. Interim Plans
9. No party has suggested that a final plan of 

pupil, teacher, and school desegregation for the entire desegre­
gation area cannot be fully prepared and implemented, should 
stays be lifted, at the beginning of the 1973-1974 school 
year.

10. Planning on all pupil reassignments within the 
Detroit school district —  consistent with the metropolitan plan—  
should be completed by December, 1973; and any continuing
discriminatory practices within the Detroit School District must

qcease by mid-term.-'
11. In any event, all pupil reassignment and transpor­

tation planning for the complete plan should be completed by 
February 1, 1973, so that ample time is available for acquisition 
of needed transportation.

12. Within the limitations of' what transportation is 
needed, what planning for clusters or parts of clusters is 
completed, and when any stay on implementation of a metro­
politan plan is lifted, as much desegregation as is practically 
possible should be implemented for the mid-term break this 
year.9 10

D . Kindergarten
' 13. Plaintiffs respectfully submit that the "non-compulsory"

nature of kindergarten in Michigan and possible refusal of 
parents to send their children to the school to which assigned 
are not factors which can be given any weight; such "political con­
siderations, really, would amount only to an impermissible 
accomodation of community hostility to desegregation and 
fears of "white flight".

9 For example, on information and belief, plaintiffs submit
that transfers are still operating on a racially discriminatory 
basis within the District; as another example, the magnet high 
school and middle school programs, which were so thoroughly^ 
repudiated, albeit necessarily by implication, in the Court s 
ruling on Detroit-only plans continue operating in their 
independently discriminatory fashion.

10 Should the stay now in effect be lifted, the ’’practical" objections 
raised by the various defendants to mid-term implementation 
must be considered, and rejected, in light of the controlling 
principles ennunciated in Carter v. West Feliciano Parish__S£nool_



A

See Brown II, 3̂ 9 U.S. 294, 300 (1955), Monroe v. Bd. of Commissioners, 
391 U.S. ^50,459 (1968).

14. On the other hand, the half-day nature of kinder­
garten is a factor to be given some weight, both because of its 
implications for the transportation system and in determining 
the "reasonableness" of time in transit. Plaintiffs are keenly 
aware, however, that defendant school authorities have failed 
to show, or even allege, a compelling justification for not 
including kindergarten children in the plan. See Finding 52, Opinion 
of June 14, 1972.11

E. Special Education
We concur in the panel’s recommendations (See Panel Report 

at 13-14) with three caveats.
15. Special education "diagnosis”, "placement", and 

"review" constitute several of the panoply of practices which must 
be closely scrutinized, both within and without the Detroit 
school district, on an individual and system-wide basis "to avoid 
imposing the effects of past discrimination on the children".
(Finding 82(d), Opinion of June 14 , 1972).12>1  ̂*

Bd., 396 U.S.226,290. The panel’s criteria for which clusters 
should be desegregated on such an interim basis seem reason­
able (See page 6, Panel Report).
In any event, for purposes of planning pupil assignment, if 
the retention of some substantially disproportionate kinder­
garten classes is justified, the primary goal in those 
schools should be to achieve, within the limitations set by 
the Court, maximum actual desegregation in other grades, not'the entire school population, including the kindergarten 
children.

12 The potential racially discriminatory effects of many such
practices is of common record in many other cases. pSee, e.g., 
Hobson v. Hansen, 269 F.Supp.401(D.D.C.1967) ; Larry P.B, v. Riles —  
F.Supp. — (N.D.Cal. 1972),— U.S.L.W.K. —  . ......
Intervening defendants’ concern (apart from voluntary concurrence 
with the substance of plaintiffs’ claims in that suit) with 
another lawsuit, Harrison v. Michigan, is misplaced. That 
suit does not seek to eradicate racial discrimination, but 
rather to enforce the asserted constitutional right of 
every child to an education throughout the State of Michigan.
No conflict, therefore, exists between the two suits. Moreover, 
some of the counsel of record for both plaintiffs and defendants 
in Bradley are similarly alligned in Harrison; we presume that 
counsel will seek to keep both Courts informed of subsequent 
developments as they may arise.

3



16. The desegregation of special education classroom 
programs, insofar as practicable and sound, need not occur, regard­
less of other earlier pupil desegregation, before the beginning 
of the 1973-74 school year.

17.In no event should special education be used with the
\purpose or effect of resegregation.

F. Compensatory Education
18. Compensatory education should not be used with either 

the purpose or effect of racial resegregation within or between 
buildings. Insofar as any school authority deems compensatory, 
special, or tracked education appropriate, this Court has 
already ruled that if it "has racial effects, it should not be 
utilized". (Finding 82(d), Opinion of June 14, 1972).

19. Rather, in such circumstances, supplementary 
services should be provided in the regular classroom through 
individual tutoring or in extra-school environments (e.g. the home 
or summer school).

20. The intervening defendant school districts do not
represent the "great white educational hope" for black children
through segregatory compensatory education. This Court in its
ruling of June 14, 1972, was at great pains to speak of the
valid constitutional and moral bases for school desegregation
and their prohibition of such "tracking, whether so labeled or
by any(test". (Finding 82(d)). We trust that intervening
defendants' comments on "special" and "compensatory" education

. ] 4represent no more than a temporary failure to get this message.
G. Pupil Transfer Policy

21. Plaintiffs concur in the panel's recommendations 
(pp.17-19) for transfers with the following exceptions.

22. Magnet middle schools should cease operation as 
of the second semester of this school year.

23. Reports on any type and all.transfers, giving reasons 
for each and the race of each applicant and his receiving and

We read the panel's apparent ambivalence on the issue of 
compensatory education solely as a concession, not to 
resegregation in any form, but rather to a possible ambiguity 
in the funding provisions of Title I and its equivalent under 
state law. The panel did not want the desegregation area and 
its constituent districts to lose its present, and presumably

9



sending schools, all collated in comprehensive tables, must be 
given to the Court and the parties at the beginning and end of 
every semester until this Court no longer has jurisdiction over the 
case.

24. In the absence of good reason advanced by the panel 
why area vocational schools should be treated differently than 
other specialized schools, the panel’s recommendation 4 should 
govern both, with the understanding that the racial percentages 
mentioned are guidelines and that, in any event, majority-to-minority 
transfers, space and transportation guaranteed, should govern 
admissions to such schools.

H. Faculty and Staff Assignment and Affirmative Action
in Employment
25. Although the- affirmative action employment and 

assignment goals set by the panel to achieve substantially a 25$ 
black, 75$ white mix of faculty and staff at every school
upon pupil desegregation may well be justified in light of the 
historic underemployment of blacks by suburban districts, 
plaintiffs respectfully submit that the following recommendations 
are adequate, at this time, to meet constitutional requirements.

26. With respect to initial reassignments incident to 
pupil desegregation, the previous findings and order of the 
Court set the constitutionally required minimum.1  ̂ See Order of

fair/ share of these funds. Should such issue arise, this 
Court possesses ample power to protect-its jurisdiction and 
insure that there is no reduction in presently available 
education services either in retaliation for or as a result 
of desegregation.
"Faculty and staff shall be reassigned... so as to prevent 
the creation or continuation of the identification of schools 
by reference to past racial composition, or the_continuation 
of substantial disproportionate racial composition of faculty 
and staffs, of the schools in the desegregation area [and] 
it is appropriate to require assignment of no less than 10$ 
black faculty and staff at each school." Order of June 14, 
1972 §11.F. We do, however, join in the minor modification 
proposed by the Minority Report and D.F.T.: in schools with 
19 or less faculty members, at least two should be black, 
if feasible.

10



• •
June Ik y 1972— §11.P. and Findings 5^-56 and Conclusion 5,
Opinion of June 14, 1972.

27. To accomplish the goals for initial reassignment 
set by the Court, planning should proceed so that faculty and 
staff desegregation may accompany pupil desegregation. In any 
event, although volunteers, affirmative hiring, and reassign­
ments within clusters-*-5 all may be considered and used, it is 
accepted by all the parties that affirmative reassignments must 
be made. To that end, a complete plan for actual faculty and 
staff reassignment^ to accomplish desegregation for the 1973-7^ 
school year should be filed by March 15, 1973.

28. For at least the initial period of implementation, 
we agree with the Panel Report, the State Superintendent, and the 
Minority Report and objections of the D.F.T: as to all "economic 
rights" the contract and policy of the sending district should 
govern; and as to all "working conditions", the contract and 
policy of the receiving district should govern— all subject,
of course, to the requirements of the Court's orders and rulings.

29. Any provisions in the Panel Report extending beyond 
the period of initial implementation need not now be considered.

30. As to the affirmative action employment program, 
primary responsibility should rest with the local school 
authorities, subject to the supervision and assistance of the 
State Superintendent and State Board, until alternative govern­
mental and "administrative arrangements are established.

31. In particular, we concur that the State Superintendent 
should assist by establishing a pool of certificated and/or 
certifiable candidates from which new hires should be made.

32. At the end of a reasonable period of implementation 
of such affirmative action employment program, then-responsible 
school authorities, as well as the State Superintendent and 
State Board, should be required to justify any substantial under­
employment by race in the composition of faculty and staff

As the racial pattern of faculty allocation so closely mirrors 
the present pupil populations throughout the desegregation 
area, planning for faculty and staff reassignment should 
proceed initially within clusters and school pairings.

16  ̂ , Insofar as there are individual grievances, the framework
suggested in the Minority Report and objections of the D.F.T. seem workable, as do those of the State Superintendent; 
such details now should be worked out.

iM esfU w sa iw j*'1 •

11



• •
employed by any local school district as compared with the 
pupil racial composition in the desegregation area. See, e.g., 
Jackson v. Wheatley, 430 F.2d 1359(8th Cir. 1970). Adequate 
justification should consist solely of a showing that such 
continuing substantial underemployment is not in any way the 
residual result of past or present racial discrimination ,
practiced by school authorities.

I. School Finance
33* Pursuant to initial operation by memoranda of 

agreement between State, intermediate and local school authorities, 
existing tax raising and distribution should generally 
remain in effect, except as otherwise altered by the Legislature 
or other judicial action. ^

34. Any operating deficits, millage losses, or other 
financial setbacks which actually threaten the operation of the 
racially unified, non-discriminatory school system contemplated
by the Orders of the Court should be brought to the Court as neces­
sary. Compare Preliminary Injunction Order of July 7, 1972. 
Plaintiffs respectfully suggest that the Court, in the event 
of any financial crisis, first consider the resources available 
to the local district (including excess funds from building 
and state funds) and reallocation of state school aid moneys, 
before considering other courses of action necessary to

1 Ocontinue the constitutionally required minimum. See also
v.State Superintendent’s Interim Report, at 9-10.

J. School Construction
35. Cursory examination of the Panel’s Pupil Assignment 

Plan suggests that implementation of such an effective plan of 
desegregation may result in the availability of considerable excess 
capacity; such excess capacity, during the initial period of 
operation,should be fully utilized before the construction of

-*■7 /vs teacher costs, construction costs, and equipment costs 
constitute the vast majority of school operating and capital 
budgets, these factors would be sufficiently controlled and 
equalized, at least for the period of initial implementation, 
to comply with the prior orders of the Court.

l8 . „The Legislature and designated State agencies, of course,
remain free to act to overcome such financial crises, thereby 
obviating the need for judicial intervention. See, e.g., 
Michigan H.B. 5840, "A Bill to Provide for Emergency 
Financial Assistance for Insolvent School Districts."

12 -



• •
19additional classroom space.

36. During the period of initial operation, an injunction 
against all new construction in the tri-county area should issue 
as part of the Court’s order.

37. Any request for new school construction should 
first be passed upon by the State Superintendent and State Board; 
should they approve, they, along with the local school 
authority, should apply to the Court for modification of the 
construction injunction.

38. It should be understood that construction of new 
classroom space outside the desegregation area should not be 
permitted unless such new classroom space affirmatively 
promotes desegregation. Cf. Finding 69> Opinion of June 14,
1972.

39. If new capacity is not needed in the desegregation 
area during the initial period of implementation, priority on 
using construction monies should be given to substantially 
equalizing, where necessary, school facilities as between 
formerly "black" and formerly "white" schools.

1*0. Any new capacity in the desegregation area should 
be added on a priority basis within the City of Detroit in 
order further to alleviate overcrowding and minimize and 
equalize transportation burdens disproportionately borne by 
black pupils in the City under the plan. Finding 63, Opinion 
of June 14 , 1972.

K. Class Size
2»1. During the initial period for implementation, 

"regular" class size, capacity, and teacher reassignments 
should be determined on a uniform basis, targeted at the appli­
cable mean of every cluster to the end that formerly "black" 
and formerly "white"schools will not be identifiable solely by

19 This may well represent acost saving sufficient to set-off any 
increased costs in transportation, even if such increase in 
transportation costs is the result of discrimination which 
affected segregation.

13



reference to their "regular" class size and relative overcrowding. 
See Findings 45 and 59 and Conclusion 5, Opinion of June 1*1, 1972.

L. Governance
42. Plaintiffs concur in the Panel Report recommendation 

that the State Defendants, and in particular the State Super­
intendent and State Board, shall be primarily responsible for 
overseeing and reporting on the operation of the plan, at
least for the initial period of implementation until other 
governance and administrative arrangements are made.

43. A regular and uniform, system of reporting by 
local districts to the State Superintendent and by the State 
Superintendent to the Court should be developed and ordered into 
effect.

44. For at least the initial period of implementation, 
existing arrangements should be preserved) insofar as possible 
and consistent with the implementation of the plan of desegre­
gation, and serve as a framework for necessary modifications.

M . In-service Trainlng, Community Programs, Curriculum, 
Standard's of Conduct, and Student Activities,
45. As to each of these concerns, further technical 

assistance can be provided by the interaction of the panel 
with State and local school authorities and utilization of
available resources. However, as noted by the Court in its 
previous rulings, and by the Panel Report and the Reports of 
the State'Superintendent, much of the actual implementation 
must be carried out at the cluster, school pairing, or individual 
school level with the involvement of parents, students and staff. 
Finding 82, Opinion of June 14, 1972.

46. Insofar as possible, actual implementation should 
also make use of available resources to minimize expenses: for 
example, creative use of monies available for the purpose and the 
time now spent in in-service training during, after, and before 
the school year should suffice to prepare faculty and staff 
for their important new tasks.

20 Plaintiffs recognize that some leeway must be given in this 
standard; but, during the initial period, the general standard 
should not be subject to collective bargaining or local 
school authority action which, in any way, alters the operation 
of "just schools." (Thus, both bargaining on and setting of 
class size during the interim period should proceed only on a 
desegregation area, cluster, or paired school bases.)

14



47. Although the Importance of these matters is paramount-
they do most directly affect the experience of the children in

PIschool— no set plans should be submitted to the Court; rather, 
they should be the subject, generally, of the Court’s final 
order, the memoranda of agreement, and regular reporting. In 
particular, however, no resegregation within the desegregated 
school should be permitted, at least in the period of initial 
implementation and for some time thereafter. See Finding 82(d) , 
Opinion of June 14, 1972; and, e.g., Lemon v. Bossier Parish 
School Board, 444 F.2d 1400, l401(5th Cir 1971). Further, we 
believe that the Court has already made it abundantly clear that 
it will not permit racially discriminatory practices-— curriculum, 
textbooks, standards of conduct, or otherwise— to undermine the 
school experience of the individual children. Finding 82, Opinion 
of June 14, 1972; compare Smith v. St. Tammany Parish School Board, 
448 F2d 415 (5th Cir. 1971).
H . THE STATE SUPERINTENDENT'S REPORTS 

A . Report on Final Arrangements
48. Plaintiffs submit that a preliminary injunction 

order incorporating the State Superintendent's Report on Interim 
Arrangements, with modifications, forms an appropriate basis for 
the initial implementation and operation of the complete plan of 
pupil desegregation, pursuant to appropriate memoranda of agree­
ment between state and local school authorities.

49. Such approach will permit the implementation and 
operation of the complete plan of desegregation with the least 
possible intervention into existing arrangements.

50. Such approach will give the legislature, or other 
designated State agency, opportunity to promulgate new financial, 
administrative, and governmental arrangements. Such arrange­
ments as are adopted should be reviewed by the Court to insure 
that they do not impose the effects of past discrimination nor in 
any way subvert the racially unified, non-discriminatory school

21 This, in no way, should prevent state and local authorities 
from promulgating their own rules and regulations, consistent 
with the Court's rulings.

-- 15 -



• •
system contemplated by the Court’s rulings,22

51* Should the state fail to respond within reason­
able time or upon a showing of good cause, the Court should 
consider modifications of existing arrangements, but only to the 
extent necessary to insure the continuing workability of the 
plan of desegregation consistent, to the extent feasible, with 
then existing, legitimate state policy.23

52. Such approach obviates the need to further consider 
the Superintendent's Report on Final Arrangements.

B. Report on Interim Arrangements
53. Plaintiffs, as noted, agree that the State Superin­

tendent's recommendations for interim arrangements, with modifi­
cations, form a basis for initial implementation and operation
of the desegregation plan for all grades, schools, and clusters 
in the desegregation area.

54. The Court's requirement of "substantially like schools"
. ,at least during the period of initial operation, 

will be sufficiently met/by the appropriate transfer and reassign­
ment of pupils and teachers, attention to uniform capacity to avoid 
overcrowding and substantially disparate class sizes, and judicious 
use of construction monies; indeed, these factors account for 
most operating and capital expenditures.

55. Existing transportation arrangements will have to 
be fully modified to create the transportation system necessary
to implement and operate the complete plan of pupil desegregation; 
although title to all transportation equipment may remain in the 
local school district, and planning should proceed on a cluster 
by cluster basis, an integrated system of pupil transportation should 
be achieved to accomplish pupil desegregation.

22 In particular, it should be noted that the plan of desegregation 
permits delegation by the state of authority to a variety
of subordinate governmental instrumentalities to assist in 
carrying out the state's ultimate responsibility for providing 
education; for example, the desegregation area, the intermediate 
district, the cluster, and even paired schools and feeder patterns, 
or even individual schools, could form the basis for establishing 
such subordinate governmental instrumentalities as the State may 
deem fit consistent with the racially unified, non-discriminatory 
school system contemplated by the Court's rulings. Cf. Reynold v. 
Sims, 377 U.S. 533,575 (1964).

23’ Some of the defendants continue carping about "year by year 
adjustments". Yet, the rule and practice in every school 
case is to retain jurisdiction, at least for several years, to

.. 16 _



56. A common calendar by cluster, or at least paired 
school grouping, is obviously essential; so, too, is a pre-set 
calendar for the entire desegregation area.

57. The State Superintendent and State Board should
exercise general supervision over the entire desegregation 
area and remain the agency primarily responsible for all 
reports made quarterly (at the beginning and end of every 
semester) to the Court. .

58. Memoranda of agreement should be effected between
the State Superintendent and local school authorities, at least on 
a cluster by cluster basis. Such memoranda must conform to the 
orders of the Court and be served upon the parties and submitted 
to the Court for inspection and approval at least 30 days prior to 
any implementation and, in any event, no later than December 15, 
1972. _

59. During the period of initial implementation, any 
proposed modifications of the memoranda of agreement should be 
served upon the parties and submitted to the Court for approval.

60. The memoranda of agreement should be predicated, at 
least initially, upon the imposition of sanctions by State defen­
dants (e.g., witholding funds and accreditation, or receivership

P iltakeover by the State board ) against all local school districts 
for failure either to contract or enforce the 

contract; additional sanctions, of course, may flow from the 
Court upon showing just cause and, if necessary, joinder of 
additional parties. .

61. Plaintiffs make the following summary of comments 
on the "Suggested Memorandum of Agreement", (Appendix B, State 
Superintendent’s Report on Interim Arrangements):

a. Agreement on transportation system should be
reached;

' insure that the plan'"iI“~Tn fact, effective and to permit 
modifications which are required by the development of 
unforseen circumstances. (See, e.g., Kelley v. Metropolitan 
School Bd. of Nashville— Davidson County, —  P . 2d . — 77~"

^  Cf. Order of June 14, 1972, §I.C.

17 -



•  •b. Facilities should be restructured, wherever
possible, consistent with the Court's orders and ruling, with initial 
consideration among paired schools within clusters, and the agree­
ment should so provide;

c. Agreement not to segregate with the purpose or 
effect by race within schools should be reached;

d. The pattern of identification of schools by 
reference solely to the racial composition of faculty should be 
eliminated and the agreement should so provide;

e. Agreement should be reached on the specific
aspects of the division between faculty and staff contracts and policy of 
the sending district governing "economic rights" and of the 
receiving district governing "working conditions", and how 
grievances, with respect thereto are to be worked out;

f. Recognition of the responsibility to take 
affirmative action in employing minority group members should 
be made and agreed upon;

g. "Regular" class size should approximate the 
mean within a cluster and, in any event, the former racial 
identity of schools should not be identifiable solely by reference 
to class size;

h. Agreement should be made to submit all proposals 
for new construction first to the State Superintendent and State 
Board, and then to the Court, with the understanding of the 
priorities set for additional classroom space and improvements,
as set forth above at p. 13 ; and

i. Agreement should be made for providing necessary 
and uniform reports to evaluate the effectiveness of the plan,.

62. Work on the precise form and language of the 
memoranda of agreement should begin immediately and an interim 
report should be submitted by November 15, 1972 of progress.
IH. FURTHER PLANNING

Planning should proceed immediately to modify the 
plans submitted and to accomplish appropriate memoranda of agreement 
between state and local school authorities.

Plaintiffs suggest the following framework as illustrative 
of an appropriate basis for further planning to modify the 
plans submitted. As to the modification of the pupil assignment plan, 
panel member Foster, under the supervision of panel member



• #
(the State Superintendent's Designee)

Pierce^ should be designated by the Court to make modifications
in direct contact with, and receiving necessary data and recommen­
dations directly from one pupil assignment staff person designated 
from each district. Counsel for the suburban school districts 
should assist the Court by recommending the appropriate persons 
from each suburban district; where necessary, the State Super­
intendent, upon recommendation from the local school district, 
should fulfill this responsibility. In this regard, panel member 
Henrickson, assisted by his staff, should be the pupil assignment 
staff person for all schools in the Detroit School District.

At the same time, the coordinated modification and 
development of a complete plan of transportation should be under 
the supervision of panel member Pierce, assisted by panel members 
Foster and Wagner, and such additional transportation expertise
as they may require; the State Superintendent and counsel for 

shouldlocal districts/be required to see that the appropriately informed 
and experienced personnel from local districts are made available 
to assist in planning.

As to faculty and staff assignment, each local education
agency should appoint one representative; with one representative
appointed by the employees from each district, they should work
to develop cluster by cluster plans to accomplish the goals set
by the Court. Panel members McCutcheon and Emerson should be
designated by the Court to coordinate this effort.

As to other matters, including restructuring of facilities
and moving supplies and equipment incident to pupil desegregation,

student conductin-service training,/and curriculum, there is considerable expertise 
on the panel. At the state, intermediate and local levels, as 
well as in local universities, there no doubt is also considerable 
experience. Presumably, Title IV Centers and federal funds should 
also be available to assist at least in this respect. The Court 
should hear suggestions from defendants on how school authorities-— •

Plaintiffs recognize that the school authorities have the 
primary responsibility for meeting constitutional requirements;

. if, however, disagreements cannot be worked out, the Court 
should be available to provide further assistance.

-  19



state, intermediate, and local— can coordinate their efforts to 
comply with the planning, and eventual implementation, of the 
Court's orders in these respects.

The Defendant Detroit School District should be required 
to submit reports on present discriminatory practices and a 
plan for their elimination, along with a plan for implementation 
of as much of the Metropolitan Plan within the city as possible, 
for the second semester of this school year.

The State Superintendent should work with local school 
authorities on the appropriate language for the memoranda of 
agreement to conform to the Court's orders and rulings.^

The schedule for completion of these tasks and reporting 
should be as follows:

a. Interim Report by the State Superintendent on the 
form and substance of the memoranda of agreement, and its accept­
ance by local and intermediate districts, should be served on the 
parties and filed by November 15, 1972;

b. Interim reports on Pupil Assignment, Transportation, 
and Faculty and Staff Assignment Plans should be served on the 
parties and filed by December 1, 1972;

c. Final Report of the Defendant Detroit Board on dis­
criminatory practices and their elimination, and implementation 
of as much of the metropolitan plan within the Detroit School 
District as possible, for the second semester should be served 
on the parties and filed by December 1, 1972;

d. Final Report by the State Superintendent on the memor­
anda of agreement and its acceptance by local and intermediate 
districts should be served on the parties and filed by December
15, 1972;

e. Final Report on Pupil Assignment and Transportation , 
Plans should be served on the parties and filed by February 1, 1973

f. Final Report on Faculty and Staff Assignment should 
be served on the parties and filed by March 15, 1973.

Fifteen days after the filing of any report, the parties
should file their objections and proposed modifications.

The panel should be prepared to provide necessary assistance and 
coordination in all these matters as called upon; and, to insure 
compliance with further planning, the state defendants should 
continue to provide necessary assistance, including withholding 
funds or accreditation from local districts as a sanction upon 
failure to cooperate. Order of June l1), 1972 § I.C.

-  20



♦ t
Conclusion

The stay imposed by the Sixth Circuit on implementation 
of metropolitan aspects of desegregation contemplated by the 
prior orders and rulings of the Court has provided time. If the 
parties are unwilling to use the time presently available in a 
constructive fashion, the Court should have no qualms about 
ordering into effect a complete plan of desegregation based upon 
the plans submitted by the panel and the State Superintendent 
and objections and proposed modifications filed by the parties. 
Any inconvenience can be worked out now.by planning or during 
actual implementation. As in every school case, the choice of 
which course to take rests, in the first instance, with state 
and local defendants.

In light of the f-oregoing, plaintiffs respectfully pray 
that the Court convene a conference in chambers of all counsel, 
the State Superintendent, and the last permanent chairman of the 
panel (Mr. McCutcheon) to determine whether and in what fashion 
additional planning should proceed and what schedule should be 
set.

LOUIS R. LUCAS J
WILLIAM E. CALDWELL
Ratner, Sugermon & Lucas 
525 Commerce Title Bldg. 
Memphis, Tennessee

NATHANIEL JONES 
General Counsel
N.A.A.C.P.
1790 Broadway 
New York, New York

Respectfully submitted,

/ C < < __Jr f '

paulTT7~dimond
J. HAROLD FLANNERY
ROBERT PRESSMAN

Center for Law and Education 6l Kirkland Street 
Cambridge, Massachusetts

E. WINTHER McCROOM 
3^25 Woodburn Avenue 
Cincinnati, Ohio

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York

_  21 _



4 * * > *
CERTIFICATE OF SERVICE

Copies of the foregoing were served this day, September 
15th, 1972, on Counsel of Record by mail, postage pre-paid.

PAUL R. DIMOND

\